9911796707
TMI Blog2024 (3) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence, Rule 3 (2)(b) of the Export of Service Rules, 2005 is not fulfilled - time limitation - HELD THAT:- Admittedly, there is no dispute that the service has been provided by the Appellant in the capacity of an agent for the overseas exporter. There is nothing to suggest that they have acted as purchase agent on behalf of the Indian Railways. As per the details given at Para 4(iv) of the OIO (Page No. 8), it is seen that the Indian Railways is required to pay the net amount of US $ 1167/1081 to the Chinese Company. Apart from that they are required to pay US $ 67/US$65 to the Appellant on account of Chinese Commission wherein the rate of exchange has been taken as US $ 1= Rs. 39.82. Based on this rate of exchange, Indian Railways has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT:- There are force in the Appellant s arguments that there has been no concealment on their part. All their commission receipts were reflected in their P L Account and in their Balance Sheet from where the data was collected by the Department to issue the Show Cause Notice. Therefore, SCN issued on 21/04/2012 for the period 2009- 10 is time barred. Therefore, Appeal allowed even on account of limitation. Appeal allowed. - HON BLE MR. R. MURALIDHAR, MEMBER ( JUDICIAL ) Mr. Jaidip Basu Advocate Ms. Meghna Chandak, CA for the Appellant Mr. K. Chowdhury, Authorized Representative for the Respondent ORDER PER R. MURALIDHAR : The Appellant has procured Orders for a Chinese Company from Indian Railways for supply of different grades of Wagons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel points out that admittedly they were engaged by the foreign manufacturer to act as their agent to sell their wagons in India. As per the Contract entered into between the Overseas Exporter and Indian Railways, instead of the Overseas Exporter paying them the agency commission, the Indian Railways was directed to pay the commission by specifying in dollars terms the agency commission to be paid. The Contract itself has specified the rate of exchange for 1 USD as Rs. 39.82. They point out to Para 4 (iv) of the OIO (OIO page No. 8) wherein, the terms of Contract has been reproduced by the Adjudicating Authority. They submit that these facts prove that in the normal course, they have received the amount in dollar terms but because of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid by the Indian Railways to the Appellant. Admittedly, they have paid the amount in Indian Rupees to the Appellant. He also draws my attention to Para 4(iv) of the OIO wherein it is stated that the Contract prices are exclusive of Agency commission . He submits that in the case law of CCE, Jaipur-I Vs. National Engineering Industries Ltd., the High Court has given the benefit to the assessee only on the ground that the price was inclusive of the commission to be paid whereas in this particular case, the contract itself shows that it is exclusive of the Commission to be paid to the Appellant. Therefore, he justifies the confirmed demand. 6. Heard both sides and perused the Appeal Papers and other documents on record. 7. Admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween Indian Railways and the Appellant to make any payment as a Purchase Agent on behalf of Indian Railways. So long as the Indian Railways has not given any contract, they are not required to pay any amount to the Appellant. Obviously, in this case, they have paid the amount only on the specific instruction of the Chinese Company on their behalf. 10. Coming to the decision of the Rajasthan High Court, cited supra, I find that they have has under:- 4.1 One more option is available in the Distributorship Agreement where the buyer can opt for payment of commission directly to assessee which is separately indicated in the sale invoice. In such a case the amount of commission is not passed on to the seller by the buyer. Where the buyer pays p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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